This article is written from the perspective of California DUI cases, so DUI laws from other states may or may not apply. Consequences of a DUI conviction can be severe. If arrested for DUI, you should investigate getting the DUI charges dropped entirely. DUI is a highly specialized and technical area of law – fighting DUI charges should involve retaining a lawyer experienced in DUI and with knowledge of the local courts. Do not try to use this article to evaluate your own case. Instead it should help you evaluate whether or not you are talking to a qualified DUI lawyer or not.
Falsities About Beating DUI Charges
Before going into legitimate ways to beat DUI charges, we discuss a couple of DUI myths. First, some people (and even some lawyers) believe that if the police officer does not read someone their Miranda rights it is like a get out of jail free card. You can learn more about Miranda and DUI, but the long and short is that officers do most of their questioning prior to you actually being placed under arrest, so Miranda does not apply. Suffice it to say, every year more than 100,000 people who were not Mirandized are convicted of a California DUI.
Another myth about DUI arrests is that you have to be driving to get convicted of a DUI. While the “D” does stand for driving that does not mean you have to be currently driving. Many DUI arrests are made after an accident, and other DUI arrests are made of people sleeping in their vehicles or even next to them. You can also be arrested for boating under the influence or even riding a bicycle intoxicated.
Realities About Beating DUI Charges
- Not driving DUI defenses. As mentioned above, people are convicted all the time of California DUI even though the police office did not see them driving. In most cases, a winnable not driving defense requires someone else to testify that they were the driver and not the person the arrested.
- Drinking after driving DUI defenses. Some people like to have a drink as soon as they get home, and some of these people will be arrested for DUI in their home. While this legitimately happens, this type of drinking after driving defense can be difficult to win. A better drinking after driving DUI defense is when someone’s car breaks-down or they have had an accident and they then go into a bar or store to get alcohol. In these types of situations, there will often be a receipt to establish that the alcohol purchase occurred after driving. Even better is if a bartender or clerk will testify that the defendant did not appear intoxicated.
- Drinking right before driving DUI defenses. Since it takes awhile for alcohol to absorb into a person’s system, they might be perfectly sober while driving but under the influence by the time they get tested for DUI. The strongest “rising alcohol DUI defenses” have a few properties. First, it is important for the defendant to be close to their destination, so it can be argued they would arrived perfectly sober. It is also very helpful to have the field BAC test return a lower value than the official chemical one.
- Acid Reflux & GERD DUI Defenses. Most people have heard that eating certain foods or using mouth wash can result in artificially high BAC measurements on breath tests. It is true that “mouth alcohol” can inflate the readings, but most police officers enforce a 15 minute observation period to counteract this effect. Misreadings from Acid reflux or other GERD issues will not dissipate after 15 minutes since it is part of a person’s internal system. In practice, to have these cases be winnable it is not enough to claim heartburn, but someone should be under doctor’s care and taking medication.
- Failure to follow procedure for breath tests. Most police officers wait at least 15 minutes before issuing a breath test, but if they do not one might have a fairly strong DUI defense. Other procedural errors including failure to calibrate or maintain equipment in compliance with California regulations or accepted scientific practices can invalidate breath measurements.
- Failure to follow procedure for blood tests. Handling blood is an extremely complex task. Blood can spoil, it can ferment, it can be contaminated with other samples or substances. A California DUI lawyer can help you to understand if there might be grounds to get blood results excluded. For borderline BAC levels it might be recommended to get the blood tested by an independent lab.
- Improper Stop. Your constitutional rights require police officers to have reasonable suspicion to pull you over. Weaving and other poor driving do not necessarily indicate intoxication. A broken tail-light says nothing about the quality of person’s driving, but can provide the justification for a stop that leads to a DUI arrest. Rules for DUI roadblocks are especially complicated and often can be challenged. For a police officer to get from the reason for the stop to determination of impairment involves a lot of judgment and gray area. Determining the strength of fighting DUI charges based on an improper stop requires a lawyer with a lot of experience reading police reports and who knows what arguments the local courts will find reasonable. If there were issues with your stop, a DUI lawyer may recommend filing a motion to suppress it which if successful can result in a dismissal of charges.
- Esoteric DUI Defenses. There are a lot of DUI arrests which means every type of imaginable (and some fantastical) DUI defense has been tried at one time or another and proved successful in at least a case or two. In practice, though, the majority of winnable DUI defenses will fall into one of the seven broad strategies above. If a lawyer tells you have a good case because you recently had dental work, are on a low-carb diet, have one leg shorter than the other, or something else that sounds too good to be true, it might be time to get another consultation.